Application
1. On 19 November 2007, CFMEU Victorian senior vice president Noel Washington, CFMEU organiser John Setka, ETU official David Mier and CEPU official Ivan Balta filed an application with the Federal Court. The application sought to restrain the ABCC from exercising its powers to compel Mr Washington and Mr Balta to attend and answer questions at an examination.
2. The applicants were seeking a declaration that an ABCC investigation of alleged contraventions of s816 of the Workplace Relations Act 1996 (WR Act) is not an investigation as defined by s52(8) of the Building and Construction Industry Improvement Act 2005 (BCII Act). Section 816 of the WR Act deals with the offence of intimidating a witness.
3. The applicants claimed the ABCC's investigation is being conducted for an improper purpose and is therefore not a lawful investigation under the BCII Act.
4. The application was heard on 11 December 2007, in the Federal Court at Melbourne before Justice Marshall.
Judgement
5. On 29 January 2008, Justice Marshall dismissed the application and ordered the applicants pay the ABCC’s legal costs.
6. Justice Marshall stated in his judgement “the evidence does not support the proposition that the investigation would not have occurred but for a desire to question union officials about their attitude to co-operation with the ABCC.”
The investigation
7. As disclosed in Justice Marshall’s judgement, the ABCC is investigating suspected contraventions of s816 of the WR Act. Section 816 provides for a penalty of up to 12 months imprisonment if a person threatens or intimidates a witness because that witness has or intends to give evidence to the AIRC.
8. The investigation relates to allegations of threatening, intimidating and prejudicial conduct towards two Bovis Lend Lease employees. The employees were witnesses in an Australian Industrial Relations Commission (AIRC) proceeding.
9. The applicants’ challenge in this proceeding concerned notices issued under section 52 of the BCII Act by Deputy ABC Commissioner Hadgkiss on 29 October 2007. Section 52 of the BCII Act gives the ABC Commissioner or Deputy Commissioners the power to compel a person to provide information, produce documents or attend to answer questions at an examination.
10. On 29 October 2007, the ABCC issued Mr Washington with a notice to attend an examination. The notice:
- nominated three sites where the contraventions are alleged to have taken place – the Yarra Arts site, 500 Collins Street and Docklands Park;
- nominated three building industry participants – Mr Setka, Mr Washington and Mr Miers – as being suspected of breaching s816 of the WR Act; and
- provided details of four alleged incidents being investigated – one on 23 May 2007 at Docklands Park, one on 20 June 2007 at 500 Collins Street and two outside the Yarra Arts Centre on 6 September 2007.
11. On 29 October 2007, the ABCC issued Mr Balta with a notice to attend an examination. The notice stated that Mr Balta was to be examined concerning an alleged contravention by Mr Setka at the Yarra Arts site on 6 September 2007.
12. The ABCC’s investigation into the alleged contraventions of s816 of the WR Act is ongoing.
13. The ABCC has not yet conducted examinations of Mr Washington and Mr Balta in relation to this matter.